Extraordinary Employee Misconduct: High-Speed Highway Harassment

Here’s another in my sometimes series of crazy things that employees (and, in this case, the National Labor Relations Board) do. Although the Board initially thought that employees playing driving games at highway speeds was protected activity (?!!), it has (fortunately for the rest of us drivers) rethought that position after being slapped down by the U.S. Court of Appeals for the D.C. Circuit.

So, in Consolidated Communications d/b/a Illinois Consolidated Telephone Co., during a labor strike in support of union bargaining demands, two strikers were driving in separate cars on the highway when they spotted a company truck carrying two managers. They caught up to the truck and passed it. One of the strikers pulled in front of the truck and the other pulled parallel with the first striker, preventing any cars from passing. (Apparently they were driving 45-55 miles an hour, which, as we all know, is well below actual driving speeds on the highway!) After cars began to queue up behind them, the second striker pulled into the other lane, allowing them to pass. But when the managers also tried to pass, the striker moved back over to block them again, causing the managers to brake. (Can you imagine the road rage that this was causing?) Eventually the managers took an exit to take a longer route to the worksite, where they were working to cover for strikers.

Under the National Labor Relations Act, strike-related activity is protected, but it can lose that protection if it’s sufficiently severe “misconduct.” What constitutes such “misconduct,” however, is not entirely clear.

Initially, the Board (under the Obama administration) thought that the strikers’ conduct was perfectly fine because there was an “absence of violence.” (Meaning, I suppose, that no one got hurt at highway speeds! Ignoring the road rage of all the other drivers, of course.) A wiser federal appellate court, however, noted that the Board’s focus on “the absence of violence” was wrong. As the court stated,

The central legal question before the Board was whether [the striker]’s driving behavior – on a public highway with vehicles traveling at speed of 45 to 55 mph, and with uninvolved third-party vehicles in the area – “may reasonable tend to coerce or intimidate” [nonstriking] employees.”

The court sent the case back to the Board for reconsideration. And this time, the Board’s now-Republican majority found that the striker’s misconduct was of sufficient severity to lose the Act’s protection. The Board now finds that, “Nothing in [the Act] gives a striking employee the right to maneuver a vehicle at high speed on a public highway in order to impede or block the progress of a vehicle driven by a nonstriker, even if the maneuver is executed at or below the speed limit.” The Board noted that the striker’s actions “were calculated to intimidate” (emphasis in original). Driving home the point, the Board observed the potential for “multiple fatalities or serious injuries.” The Board then concluded its opinion with this lofty paragraph:

In 2017, more than 40,000 Americans died on our nation’s roadways, and more than 1,000 automobile fatalities occurred in Illinois alone. We believe the Board must interpret our Act in light of the public safety interests at stake here. The protected right to strike does not confer immunity on employees who engage in high-speed maneuvering on public highways in a manner that interferes with other vehicles and puts targeted nonstrikers as well as innocent third-party drivers in fear of becoming a fatality statistic.

I’m glad that the Board has finally seen the light – I certainly would not want to be on the highway with strikers playing driving games to harass their managers. (And I question why any employee would think that’s OK!)

But I wanted to highlight my favorite part of the opinion, which is a footnote:

It does not matter that [the striker] was driving within legal speed limits and that [the manager] may have sought to exceed those limits in attempting to pass. Sec. 7 does not confer police authority on strikers to enforce traffic laws.

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